Công văn 1557/VKSTC-V1

To: People’s Procuracies of provinces and central-affiliated cities

In recent time, People’s Procuracies of all levels have extensively cooperated with authorities in fighting and preventing crimes in immigration sectors in order to effectively control the Covid-19 epidemic. However, the application of regulations and law for dealing with crimes in these sectors have been met with difficulties.

On the basis of reports submitted by People’s Procuracies of local administrative divisions, remarks of relevant entities affiliated to the People’s supreme procuracy (Department 1, Department 14), Ministry of Public Security (A09) and Supreme People’s Court (Department of Legal Affairs and Science Management), the People’s supreme procuracy hereby provide guidelines as follows:

1. For general issues

In conclusion of practical implementation, application of the law for dealing with crimes as specified under Article 347, Article 348 and Article 349 of the Criminal Code has been met with many difficulties, such as: Within the same charge of facilitating illegal exit of Vietnamese nationals, some local administrative divisions file charges against “Brokering illegal exit from Vietnam” according to Article 348 of the Criminal Code, while other local administrative divisions file charges against “Organizing, brokering illegal emigration” according to Article 349 of the Civil Code; adoption of the phrase “incurred an administrative penalty” in “Offences against regulations of law on immigration; illegal stay in Vietnam” (Article 347), determination of “self-seeking purposes” factor (Clause 1 Article 348 of the Civil Code), “earned illegal profit” (Point dd Clause 2, Point b Clause 3 Article 348 and Point dd Clause 2, Point b Clause 3 Article 349 of the Criminal Code) or adoption of regulations and law in dealing with cases with multiple crimes, etc. in provisions above have not been aware and implemented on a unified basis.

For a unified application of the law, pursuant to Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly, Law on Issuance of Legislative Documents in 2015, the People’s Supreme Procuracy shall request Council of Justices of the Supreme People’s Court to guide adoption within their competence.

While waiting for guidelines of Council of Justices of the Supreme People’s Court, for timely resolutions for difficulties, the People’s Supreme Procuracy requests People’s Procuracies of local administrative divisions to extensively implement prosecution right, control resolution for information sources regarding crimes and criminal cases in migration; stringently take actions against cases with signs of crimes to threaten and prevent crimes in these sectors to control the Covid-19 epidemic. For complicated cases that introduce different standpoints and resolutions, organize interdisciplinary meeting in proceeding to unify or solicit superiors in order to not falsely accuse the innocence or miss any crime.

2. For specific issues

2.1. Differentiating “brokering illegal exit from Vietnam” (Article 348 of the Criminal Code) with “organizing, brokering illegal emigration” (Article 349 of the Criminal Code)

Brokering illegal exit specified under Article 348 of the Criminal Code refers to brokering illegal exit of other individuals from Vietnam solely for the purpose of bringing other individuals across border. Example: A is paid to take 3 people from Vietnamese border to China via a trail.

While organizing and brokering illegal emigration specified under Article 349 of the Criminal Code refers to organizing, brokering of illegal exit from Vietnamese territory of other individuals in order to allow the individuals to escape overseas or stay overseas illegally.  In conclusion, people travelling overseas primarily to evade Vietnamese regulations and law (law fugitives, debt fugitives, etc.), work, illegally reside overseas, etc.; offenders usually commit a series of behaviors such as: Agreeing with clients (on costs, time, location for departure, destination, transport, methods, etc.).

Example 1: A knows B is being prohibited from exiting Vietnam thus hires people to lead B to China via trails.

Example 2: C wants to bring D to Korea to work illegally thus adopts procedures (establishing company, finishing paperwork to turn D into the company’s employee, preparing visa for D, etc.) to enable D to travel to Korea and stay as an illegal worker.

2.2. Adoption of “incurred administrative penalties” in “Offences against regulations of law on immigration; illegal stay in Vietnam” (Article 347 of the Civil Code)

Article 347 of the Civil Code prescribes: “Any person who illegally enters, exits Vietnam or stays in Vietnam despite the fact that he/she has incurred an administrative penalty for the same offence…”. Since the Code prescribes 3 independent crimes (illegal exit, illegal entry, illegal stay in Vietnam), the state of “incurred administrative penalties for the same offence” shall be understood as to have been incurred with administrative penalties for respective offences.

2.3. Dealing with cases of multiple offences specified under Article 348 of the Criminal Code

Article 348 of the Criminal Code prescribes multiple offences (organizing, brokering illegal exit, entry or stay in Vietnam for other individuals). In case multiple independent offences are committed which constitute to a single independent offence, take actions against multiple offences. Example 1: A enables B to exit illegally then A enables B to enter illegally, A shall be met with penalties for 2 offences.

In case an offender organizes illegal entry of other individuals in Vietnam to allow the individuals to stay in Vietnam illegally (organizing illegal entry is a requisite of organizing illegal stay in Vietnam), consider taking actions against “Organizing illegal stay in Vietnam for other individuals”. Example 2: C wants to allow E to stay in Vietnam illegally thus enables E to enter Vietnam illegally, C shall be met with penalties for “Organizing illegal stay in Vietnam” according to Article 348 of the Criminal Code.

2.4. Taking actions against organizing, brokering illegal stay in Vietnam of other individuals (Article 348 of the Civil Code) of individuals entering legally or illegally

The fact an individual has legally or illegally entered Vietnam shall have no effect on determining offences of the individual regarding organizing, brokering illegal stay in Vietnam of other individuals.

2.5. Taking actions against cases of organizing, brokering illegal exit of other individuals (Article 348 of the Civil Code) or organizing, brokering illegal exit of other individuals where offenders are detected and caught before crossing the border

For cases of organizing, brokering illegal exit for other individuals where offenders have not crossed the border, assess, classify and take actions as per the law on a case-by-case basis. In case offenders have conducted objective behaviors that constitute crimes before being caught prior to crossing the border, the offenders must still be criminally responsible even when the crime has not been successfully committed.

2.6. Dealing with cases of bringing individuals who made illegal entry deep into Vietnamese territory  

For cases of bringing individuals who made illegal entry deep into Vietnamese territory, assess, classify and take actions on a case-by-case basis as per the law. In case hired individuals know about illegal entry to Vietnam beforehand but still agree or receive request of organizers, brokers or individuals bringing individuals who made illegal entry deep into Vietnamese territory for self-seeking purposes, take actions for “Organizing, brokering illegal entry” as accomplices. In case an individual, despite clearly knowing other people have illegally entered Vietnam, brings these people deep into Vietnamese territory to stay and/or find jobs, the individual shall be met with penalties for “Organizing illegal stay in Vietnam of other individuals”.

Example 1: A knows B will enable foreigners to enter illegally via Lang Son Border and enter Ho Chi Minh City and helps B bring the foreigners to Ho Chi Minh City from Lang Son out of self-seeking purposes. In this case, A is met with penalties for “Organizing illegal entry” as accomplices.

Example 2: C works as a Grab drivers, knows about Chinese people who have made illegal entry to Vietnam and now need to travel from border area to Hanoi City looking for work. For self-seeking purposes. C agrees to transport these individuals but is caught while transporting. In this case, C shall be met with penalties for “Organizing illegal stay in Vietnam”.

2.7. Taking actions against “Fabricating an organization's seal or documents and use thereof” (Article 341 of the Civil Code) of organizers, brokers who enable other individuals to enter, exit or stay in Vietnam illegally, escape overseas or stay overseas illegally

In case individuals fabricate an organization’s seal or documents and use thereof to organize, broker illegal entry, exit, stay in Vietnam, illegal overseas escape or illegal stay overseas, the individuals shall be met with penalties on a case-by-case basis. If an offence violates multiple subjects and constitutes specific crimes, take actions against multiple penalties (utilize Point 10 Section I of Part I of Official Dispatch No. 212/TANDTC-PC dated September 13, 2019 of the Supreme People’s Court on online informing inquiry results in proceeding).

2.8. Determining “self-seeking purpose” specified under Article 348 of the Criminal Code

“Self-seeking purpose” factor specified under Clause 1 Article 348 of the Criminal code is the motive of offenders to achieve unrighteous tangible or intangible benefits for themselves or other agencies, organizations and individuals. In reality, motive of offenders is primarily tangible benefits; in case of intangible benefits, prove the intangible benefits to guarantee the basis of accusation.

2.9. Determination of illegal revenue generated under Article 348 and Article 349 of the Criminal Code

In case offenders collect money to organize, broker illegal exit, entry, stay in Vietnam or escape overseas for other individuals who have paid money, consider and identify illegal revenue according to Article 348 and Article 349 of the Criminal Code on a case-by-case basis.  Money paid realistically and reasonably during the process such as: Visa application, airplane ticket, transport service rental, etc. shall not be included in the illegal revenue.

For your acknowledgement and implementation./.